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ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school district’s motion to set aside the verdict for legal insufficiency should have been granted. Plaintiff assistant principal sued the district after she was injured breaking up a fight between students. She had previously been injured by a student and had complained that more security was needed on the floor where she was hurt. The Second Department explained that plaintiff could not recover unless a special relationship with the school district had been proven:

On a legal sufficiency challenge, whether made pursuant to CPLR 4401 at the close of the plaintiffs’ case or pursuant to CPLR 4404(a) to set aside the jury verdict, the relevant inquiry is whether there is any rational process by which the trier of fact could base a finding in favor of the nonmoving party … .

Absent the existence of a special relationship between the defendants and the injured plaintiff, liability may not be imposed on the defendants for the breach of a duty owed generally to persons in the school system and members of the public … . A special relationship can be formed, inter alia, if the defendants voluntarily assumed a special duty to the injured plaintiff upon which she justifiably relied … . In order to succeed on this theory, the plaintiffs were required to establish four elements: (1) an assumption by the defendants, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff; (2) knowledge on the part of defendants’ agents that inaction could lead to harm; (3) some form of direct contact between the defendants’ agents and the injured plaintiff; and (4) the injured plaintiff’s justifiable reliance on the defendants’ affirmative undertaking … . Morgan-Word v New York City Dept. of Educ., 2018 NY Slip Op 03673, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE  (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (SET ASIDE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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TRIAL COURT PROPERLY GAVE THE GALBO JURY INSTRUCTION RE DEFENDANT’S POSSESSION OF STOLEN PROPERTY IN THIS BURGLARY CASE (SECOND DEPT).

The Second Department determined the trial court properly gave the Galbo charge in this burglary case:

… Supreme Court [did not err] in giving the jury a Galbo charge (see People v Galbo, 218 NY 283) to the effect that the defendant’s guilt of burglary could be inferred from his recent, unexplained, and exclusive possession of the stolen items. The prosecution presented both circumstantial and direct evidence, including admissions made by the defendant during a series of telephone calls, that the defendant committed the burglary and possessed the items, and there was no reasonable view of the evidence whereby the jury could have found that the defendant unlawfully possessed the property without also finding that he committed the burglary … . People v Jones, 2018 NY Slip Op 03703, Second Dept 5-23-18

 

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ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT).

The Second Department determined the People’s motion to compel defendant to submit to a buccal swab for DNA testing was untimely under Criminal Procedure Law 240.90. But the admission of the evidence did not require reversal because the error did not implicate defendant’s constitutional rights. People v Cox, 2018 NY Slip Op 03698, Second Dept 5-23-18

​CRIMINAL LAW (ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))/DNA (ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))/BUCCAL SWAB (DNA, ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))

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FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT).

The Second Department determined claimant’s wrongful death action was properly dismissed because claimant failed to comply with the notice requirements of the Court of Claims Act and commenced the claim before the appointment of an administrator of her son’s estate:

” [B]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'”… . Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries caused by the negligence of a state employee must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the accrual of the claim … . Court of Claims Act § 10(2) provides that a wrongful death claim must be filed within 90 days after the appointment of an executor or administrator of a decedent, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the death of the decedent … .

Here, neither the claim nor the notice of intention to file a claim was filed within 90 days after the accrual of the personal injury claim, and thus, the personal injury claim was not timely. Moreover, since the claim was commenced prior to the claimant’s appointment as administrator of her son’s estate, she failed to comply with the requirements for commencing a wrongful death claim … . The failures to strictly comply with Court of Claims Act § 10(2) and (3) were jurisdictional defects compelling dismissal of the claim … . Kiesow v State of New York, 2018 NY Slip Op 03670, Second Dept 5-23-18

​COURT OF CLAIMS (FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF INTENT (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/WRONGFUL DEATH COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NEGLIGENCE (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/TRUSTS AND ESTATES (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))

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EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT).

The Second Department determined the writing and execution requirements for an out-of-court stipulation of settlement were not met by an e-mail sent by the defendant in a slip and fall case:

To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104 … . Where, as in the instant case, counsel for the parties did not enter into a settlement in open court, an “agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney” … . The plain language of CPLR 2104 requires that “the agreement itself must be in writing, signed by the party (or attorney) to be bound” … . An email message may be considered “subscribed” as required by CPLR 2104, and, therefore, capable of enforcement, where it “contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature” … .

Here, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement, [defendant]. There is no email subscribed by the plaintiff, who is the party to be charged, or by her former attorney. In the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff … . Kataldo v Atlantic Chevrolet Cadillac, 2018 NY Slip Op 03669, Second Dept 5-23-18

​CIVIL PROCEDURE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/STIPULATION OF SETTLEMENT (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/SETTLEMENT, STIPULATION OF (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/CPLR 2014 (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/NEGLIGENCE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))

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WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his default should have been granted as a matter of law. Defendant submitted an affidavit stating that he had never been notified of the court conferences and the plaintiff did not offer any contrary evidence:

Generally, to vacate an order striking a defendant’s answer based upon his or her default in appearing for a scheduled conference before the court, the defendant is required to demonstrate both a reasonable excuse for his or her failure to appear and a potentially meritorious defense … . However, “[i]n the absence of actual notice of [a] conference date, [a] defendant’s failure to appear at that conference [cannot] qualify as a failure to perform a legal duty, the very definition of a default'” … . In that situation, the defendant’s default is considered a nullity and vacatur of the default “is required as a matter of law and due process, and no showing of a potentially meritorious defense is required” … . Notaro v Performance Team, 2018 NY Slip Op 03692, Second Dept 5-23-18

​CIVIL PROCEDURE (DEFAULT, MOTION TO VACATE, WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))/DEFAULT, MOTION TO VACATE (WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))/COURT CONFERENCES (DEFAULT, MOTION TO VACATE, WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))

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THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS MARKED OFF THE CALENDAR BUT WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT).

The Second Department determined the tolling provision in CPLR 205 which allows an action which was dismissed (but not on the merits) to be started again within six months applies to Article 78 actions seeking review of an administrative ruling, here a ruling by the NYS Liquor Authority:

As the petitioner correctly contends, CPLR 205(a) applies not only to actions but also to special proceedings under CPLR article 78 … . The toll of CPLR 205(a) would not apply, however, if the prior proceeding was dismissed on the merits; thus, the court must determine whether the order dismissing the prior proceeding is entitled to res judicata effect … .

Here, the prior proceeding was dismissed after being marked off the calendar. Contrary to the Authority’s contention, “[a] dismissal of an action by being marked off the Trial Calendar is not a dismissal on the merits,” and “[a] new action on the same theory is therefore not barred by the doctrine of res judicata”… . Moreover, there is nothing in the order denying the petitioner’s motion to restore the prior proceeding to the calendar which suggests that the prior proceeding was dismissed with prejudice … . Matter of Lindenwood Cut Rate Liquors, Ltd. v New York State Liq. Auth., 2018 NY Slip Op 03680, Second Dept 5-23-18

​ADMINISTRATIVE LAW (CIVIL PROCEDURE, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CPLR 205 (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))

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BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a case remitted after reversal by the Ct. of Appeals, determined plaintiff was entitled to summary judgment in this vehicle accident case. Plaintiff was injured when a sanitation truck, which was backing up, slid on ice and hit a parked car. which in turn struck plaintiff. Initially the plaintiff’s motion for summary judgment was denied because the plaintiff did not demonstrate freedom from comparative fault. The Ct. of Appeals reversed, holding that plaintiffs do not need to demonstrate freedom from comparative fault to be entitled to summary judgment.  On remittal the First Department held that striking a parked vehicle is prima facie evidence of negligence and plaintiff’s summary judgment motion was granted:

It was Ramos’s [the driver] and Carter’s [the employee guiding the driver] responsibility to take into account weather and road conditions and to tailor their actions accordingly to avoid collisions … . The record demonstrates that the truck hit the parked car either because Ramos reacted to an abrupt hand signal from Carter and hit the brakes while he was driving on ice, causing a skid he could not abate, or because Ramos failed to adequately respond to Carter’s directives. Whether there were chains on the tires or not, defendant’s employees were obligated to maintain control of the truck and to avoid collisions with parked cars while backing up, and were negligent in failing to do so … . Rodriguez v City of New York, 2018 NY Slip Op 03634, First Dept 5-22-18

​NEGLIGENCE (BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/TRAFFIC ACCIDENTS (BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/PARKED CARS (NEGLIGENCE, BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))

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THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, determined that the NYC Landmark Preservation Commission (LPC) acted rationally when it included two buildings among 13 others designated as a landmark, called the First Avenue Estate or FAE historic landmark. The petitioner wanted to destroy the two buildings and construct condominiums, an action prohibited by the landmark designation. The First Department further held that the landmark designation was not an unconstitutional taking. The opinion is extensive and detailed and cannot be fairly summarized here. Matter of Stahl York Ave. Co., LLC v City of New York, 2018 NY Slip Op 03653, First Dept 5-22-18

​MUNICIPAL LAW (NYC, LANDMARKS, THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT))/LANDMARKS (THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT))/ADMINISTRATIVE LAW (THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT))/CONSTITUTIONAL LAW (LANDMARKS,  THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT))

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DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT).

The First Department determined plaintiffs’ cause of action for conversion should not have been dismissed and the cause action for fraud in the inducement was based upon non-actionable future conduct or events and non-actionable opinion. Plaintiffs hired defendant for extensive renovation work. Plaintiffs terminated the contract based upon defendant’s allegedly fraudulent requests for payment which were not used for the claimed purposes. When plaintiffs terminated the contract they demanded the return of $400,000 of the $840,000 they had paid. Defendant returned only about $85,000 and did not provide an accounting:

When plaintiffs terminated the contract mid-construction and demanded a return of $400,000 of the $840,000 they had paid, defendant allegedly returned only $84,622.65, without providing an accounting, and allegedly diverted the balance of such monies to his personal use. These allegations sufficiently state a cause of action for conversion … .

Plaintiffs’ cause of action alleging fraud in the inducement was properly dismissed, as it is founded upon non-actionable promises of future conduct or events, rather than present fact … and non-actionable opinion of defendant as to his entity’s resources and capability of undertaking the luxury renovation work sought by plaintiffs … . Yablon v Stern, 2018 NY Slip Op 03650, First Dept 5-22-18

​CONTRACT LAW (DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT))/CONVERSION (DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT))/FRAUD IN THE INDUCEMENT (DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT))

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